State v. Townsend

• Decision Date: 07 November 2002
• Docket Number: No. 71070-8.,71070-8.
• Citation: 147 Wash.2d 666,57 P.3d 255
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Donald T. TOWNSEND, Petitioner.

57 P.3d 255

147 Wash.2d 666

STATE of Washington, Respondent, v. Donald T. TOWNSEND, Petitioner.

No. 71070-8.

Supreme Court of Washington, En Banc.

Argued January 29, 2002.

Decided November 7, 2002.

Paul Wasson, Spokane, for Petitioner.

Steven Tucker, Spokane County Prosecutor, Kevin Korsmo, Deputy, Spokane, for Respondent.

ALEXANDER, C.J.

The principal issue we are called upon to resolve is whether a Spokane police officer violated a provision in Washington's privacy act when he saved and printed e-mail and real time client-to-client ICQ messages between Donald Townsend and a fictitious child. We conclude that the act was not violated because Townsend impliedly consented to the recording of his e-mail and ICQ communications. We, therefore, uphold the decision of the Court of Appeals affirming Townsend's conviction in superior court on a charge of attempted second degree rape.

I

The facts which we set forth hereafter are largely gleaned from the trial court's extensive and unassailed findings of facts. Based on tips received from a citizen informant, a detective with the Spokane Police Department, Jerry Keller, suspected that Donald Townsend was attempting to use his computer to arrange sexual liaisons with young girls.¹ Acting on this information, Keller set up a "sting operation" whereby he established a "Hotmail" Internet e-mail account with a screen name of "ambergirl87" (Amber), a fictitious thirteen-year-old girl. Clerk's Papers (CP) at 334.

Beginning in May 1999, Townsend, using the screen name "Big Red", but identifying himself as Donald Townsend, began corresponding with Amber via e-mail. CP at 335. These communications from Townsend were stored automatically on Keller's computer. This enabled Keller to read the messages at his leisure and to print them for later use as evidence. The e-mail communications from Townsend contained overtures for a meeting with Amber and indications that he wanted to "have fun" with her. CP at 68. In an e-mail message sent on June 1, 1999, Townsend indicated to Amber that "[I] need a promise from you ok don't tell anyone about us." CP at 66. At the urging of Townsend, Detective Keller, under the guise of Amber, "set up" an ICQ account on June 1, 1999. CP at 335. ICQ is an Internet discussion software program that allows users to communicate "across the Internet to chat freely almost as if you were talking on the phone but typing on the keyboard." Verbatim Report of Proceedings at 44. Keller's ICQ program was "defaulted" to automatically record the ICQ messages he received. CP at 325. The ICQ communications between Townsend and Amber contained graphic discussions about sexual topics including sexual intercourse. Shortly after the ICQ communications began, Townsend made arrangements via ICQ to meet Amber at a Spokane motel room on June 4, 1999. The night before the scheduled meeting, Townsend sent Amber an ICQ message in which he stated "he wanted to have sex with [her]" the following day. CP at 336. On June 4, 1999, about an hour before the arranged meeting, Townsend sent his last ICQ message to Amber indicating that "he still wanted to have sex" with her. CP at 336.

Townsend went to the motel at the appointed time and knocked on the door of the room in which he believed Amber was located. After asking to see Amber, he was arrested by Detective Keller. Townsend later admitted that he left his apartment intending to have sex with Amber, who he believed was thirteen, but thereafter "changed his mind." CP at 336. Townsend admitted to the police officers that he sent the ICQ message on June 3, 1999, in which he said he wanted to have sex with Amber the next day.

Townsend was charged in Spokane County Superior Court with attempted second degree rape of a child. Before trial, Townsend moved to dismiss the charge, arguing, among other things, that Keller's recording and printing of his private e-mail and ICQ communications violated Washington's privacy act, chapter 9.73 RCW, thus rendering any evidence of the communications inadmissible. His motion was denied. After a bench trial, Townsend was found guilty of the charged offense. He was sentenced to 89 months in prison.

Townsend appealed his conviction to Division Three of the Court of Appeals. Although the Court of Appeals concluded that the aforementioned computer communications were subject to the privacy act in that they were "private" and had been "recorded by a device" within the meaning of RCW 9.73.030(1)(a), it affirmed Townsend's conviction on the basis that "Townsend impliedly consented to the recording[s]." State v. Townsend, 105 Wash.App. 622, 629, 630, 20 P.3d 1027, review granted, 144 Wash.2d 1016, 32 P.3d 283 (2001). In doing so it also rejected Townsend's sufficiency of the evidence argument that because there was a detective at the other end of the internet, rather than a child, it was factually impossible for him to commit the charged crime. We thereafter granted Townsend's petition for review.

II

Townsend maintains that the Court of Appeals erred in holding that he impliedly consented to the recording and printing of his "private" e-mail and ICQ communications. The State, while not disputing that the Court of Appeals correctly concluded that Townsend consented to the recording of his computer communications, asserts in its answer to Townsend's petition for review that the Court of Appeals erred in holding that the communications were "private" and "record[ed]" by a "device" as those terms are used in Washington's privacy act. Thus it maintains that the communications between Townsend and Amber were not subject to the privacy act.

A provision in Washington's privacy act provides that it is unlawful to record any:

[p]rivate communication transmitted by telephone, telegraph, radio, or other device between two or more individuals ... [using] any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication.

RCW 9.73.030(1)(a). This statute is considered one of the most restrictive in the nation. Evidence obtained in violation of the statute is inadmissible in a criminal case. RCW 9.73.050.

We must first determine if the communications between Townsend and the fictitious child, Amber, fall under the act as private communications recorded by a device. If we answer those questions in the affirmative, we must then determine if the Court of Appeals was correct in concluding that Townsend consented to the recording of his private communications.

A. Were the communications private?

As noted above, Townsend asserts that his e-mail and ICQ communications to Amber were private communications and, thus, not lawfully recorded without his consent. The State suggests that it "is unclear under the facts presented" whether the communications between Townsend and Amber "were private communications under this Act." Br. of Resp't at 6.

The Court of Appeals correctly observed that the question of whether a particular communication is private is generally a question of fact, but one that may be decided as a question of law if the facts are undisputed. State v. Clark, 129 Wash.2d 211, 225, 916 P.2d 384 (1996). This court has adopted the dictionary definition of the word "private": "`"belonging to one's self ... secret ... intended only for the persons involved (a conversation) ... holding a confidential relationship to something ... a secret message: a private communication ... secretly: not open or in public."'" Kadoranian v. Bellingham Police Dep't, 119 Wash.2d 178, 190, 829 P.2d 1061 (1992) (quoting State v. Forrester, 21 Wash.App. 855, 861, 587 P.2d 179 (1978), review denied, 92 Wash.2d 1006 (1979) (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1969))).

The subjective intention of the parties to the communication is among the factors that the court may consider in determining if a communication is private. A court may also consider other factors bearing on the reasonableness of the participants' expectations, such as the duration and subject matter of the communication; the location of the communication and the presence of potential third parties; and the role of the nonconsenting party and his or her relationship to the consenting party. Clark, 129 Wash.2d at 225-27, 916 P.2d 384. The mere possibility that interception of the communication is technologically feasible does not render public a communication that is otherwise private. See State v. Faford, 128 Wash.2d 476, 485, 910 P.2d 447 (1996),

in which we held that Washington's privacy act protects against the monitoring of cordless telephone conversations.

We hold, as did the Court of Appeals, that Townsend's communications to the fictitious child, Amber, were private. We reach that conclusion because it is readily apparent from the undisputed facts that Townsend's subjective intention was that his messages to Amber were for her eyes only. That intent is made manifest by Townsend's message to Amber to not "tell anyone about us." CP at 66. In addition, the subject matter of Townsend's communications to Amber strongly suggests that he intended the communications to be private. While interception of these messages was a possibility, we cannot say that Townsend's subjective intention that his communications were private was unreasonable under the circumstances.

B. Were the communications recorded by a device?

In concluding that the private e-mail and ICQ communications between Townsend and Amber had been recorded as contemplated by the act, the Court of Appeals rejected the State's argument that the communications were not recorded because "`[r]ecording' is simply an inherent part of the use of a computer" and that prior "cases all involved use of a device different than the device used to perform the communication itself." Br. of Resp't at 7, 8. We agree with the Court of Appeals that it...